December 2014
  • Assessing A Key Facet Of The Rule Of Law
    In Post-1997 Hong Kong

    Roda Mushkat

The intellectually ingenious but practically challenging “one country-two systems” formula has enabled Hong Kong to maintain its British-style colonial institutional façade following its absorption into the Chinese body politic. A high degree of freedom and a measure of pluralism have been sustained against the backdrop of orderly governance architecture. However, a gradual process of mainlandization has been under way, slowly blurring some of the fundamental distinctions between local structural patterns and processes and those prevailing across the “border”. Inter alia, threats to judicial autonomy and effectiveness have possibly emerged. The picture is explored comprehensively and methodically in this rich set of extensively researched and soundly constructed studies on the territory’s Court of Final Appeal. Further vital insights could potentially be generated by actively encouraging scholars from disciplines other than the law to contribute to the exploration of the crucial issues raised by the authors.

Simon NM Young and Yash Ghai (eds), Hong Kong’s Court of Final Appeal: The Development of Law in China’s Hong Kong(Cambridge: Cambridge University Press, 2014), 735 pages. USD150, GBP 95. ISBN 97811070011212.
Click here to read extracts of the article

The transfer of sovereignty over Hong Kong from democratic United Kingdom to authoritarian, even if of the increasingly “soft” rather than previously “hard” variety, China had been a politically, psychologically and, at times, economically a highly complicated affair. Expectations, initially decidedly cautious, largely stabilized at the time of the handover and crossing the proverbial Rubicon turned out to be a generally orderly and relatively painless experience. Nearly two decades have passed since that diplomatically and emotionally momentous event and the new post-colonial entity, the Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR), has continued to move forward, albeit not always vigorously and smoothly, on some major policy fronts.

In the crucial, strategic value-enhancing and welfare-sustaining, economic domain, the “goose that lays golden eggs” has lost little lustre. Output expansion has inevitable moderated because of aging of the population, sharp decline in the birth rate and structural change featuring a far-reaching shift from manufacturing to services, which has unavoidably led to some drop in productivity. However, it has remained healthy, displaying moderate volatility, generating sufficient activity to ensure full employment by conventional standards, not exerting excessive upward pressure on consumer prices, and underpinning a persistently robust foreign trade and investment sector.

Hong Kong’s remarkably swift transformation from a leading international manufacturing centre to a prominent international service centre has coincided with its emergence as a “global metropolis”, a genuinely worldwide provider of intermediary services, merely one of a handful of major cities that may claim to have achieved such an elevated status. It could be argued that progress in this direction has slowed down somewhat because of the impact of bottom-up (business initiatives) and top-down (government strategies, both in Hong Kong and Beijing) forces driving Hong Kong inexorably towards China. If so, this trend may have to be placed on the negative side of the post-1997 economic ledger.

On the other hand, post-colonial Hong Kong has evolved into a vibrant linchpin of the Greater China economy, a development which may be viewed as an offsetting factor in this intricate context. The large interconnected and multi-layered region for which the territory now effectively functions as an economic nerve centre encompasses the Hong Kong –– Guangdong nexus/Greater Hong Kong as its core, Greater Southeast China (Hong Kong, Taiwan and the Mainland’s Southeast coastal provinces: Guangdong, Fujian, Jiangsu, Zhejiang and Shanghai) as its inner layer and the Greater China/Chinese economic area/CEA (Hong Kong, Taiwan and the Mainland) as its outer layer. This entire structure is firmly and productively linked to the adjacent Northeast Asian and Southeast Asian economies.

Post-1997 Hong Kong has also experienced tangible gains in its social capital. The territory’s community has traditionally been predominantly family-oriented or micro-driven. This pattern has been portrayed as “familial utilitarianism/ utilitarianistic familism”. In recent years, a stronger sense of identity — and, by implication, community — has crystallised at the macro level. It is not devoid of negative undertones, because of the significant role that a desire to assume sociopsychological distance from China and unfavourable exposure to Chinese realities has played in the process. Nevertheless, progressively deeper community ties and wider social mobilization may be considered as a valuable asset for Hong Kong.

On the negative side of policy ledger, there has been a marked deterioration in the environmental quality of life, although the problem predates the transfer of sovereignty from the United Kingdom to China. De-industrialisation normally has the opposite effect, but this has not been the case in Hong Kong. In this respect, the territory clearly differs from other leading international service centres, where air and water pollution, and even their noise counterpart, have been prevented from escalating to levels seen in Hong Kong. The circumstances are of course not entirely comparable because of complexities arising from the cross-border relationship. However, it is noteworthy that the mostly pro-Beijing, whether by design or due to the absence of other realistic options, post-1997 Hong Kong government has failed to devise, unilaterally and bilaterally, more effective institutional mechanisms for arresting ecological degradation.

The institutional space is one where further loss of policy momentum, with broader ramifications, may be observed. Specifically, there is sufficient evidence, albeit not quantitative in nature, to support the assertion that decolonisation has led to an erosion of Hong Kong’s institutional capital. The contention put forward in this regard, again in qualitative terms but not without empirical foundation, is that the territory has undergone in the past two decades or so a process of creeping “mainlandization”. This has been the result of a deliberate effort by China, reinforced by the acquiescence of key segments of Hong Kong’s policy establishment, to bring about a convergence, or at least a greater convergence, between the institutional façade on both sides of the border.

The strategy, while risking grassroots backlash, is believed to have been quite successful. Its impact is refl ected in a wide array of symptoms of political decay. Thus, the post-1997 “HKSAR is characterised by a more personal style of governance; a chaotic implementation of public policies; an increasingly politicized judiciary whose decisions have been ... challenged by Beijing and its supporters in Hong Kong; endangered civil liberties including academic freedom; an amalgamation of political labelling and mobilisation; a failure of political institutions to absorb public pressure and demands; and a governmental insensitivity to public opinion”.

This explains the importance of the book under review. The rule of law is arguably the major ingredient of Hong Kong’s institutional capital, a feature of the governance regime that may ensure “prosperity” and “stability”, even in the absence of full-fledged democracy, provided the political centre is adequately constrained from within and/or without. Moreover, an autonomous and rule-bound judiciary, with the Court of Final Appeal (CFA) as its fulcrum, is the mainstay of the territory’s rule of law system. For this reason, as well as the fact the judiciary in general and the CFA in particular have not been subject to extensive academic scrutiny, this broad-in-scope, informative, multifaceted and stimulating survey merits close intellectual and policy attention.